Jharkhand High Court
Bike Orawan @ Vike Uranw vs The State Of Jharkhand on 26 June, 2025
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
(2025:JHHC:17086)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.3089 of 2024
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Bike Orawan @ Vike Uranw, aged about 32 years, son of Jhabbu
Uranw, resident of Chhota Talbanna, Karanpur, P.O. Karanpur, P.S.
Taljhari, District Sahibganj ... Petitioners
Versus
1. The State of Jharkhand
2. Durgi Toppo, aged about 27 years, wife of Bike Orawan @ Vike
Uranw and daughter of Dhaniram Uraon, resident of Chhota
Talbanna, Karanpur, P.O. Karanpur, P.S. Taljhari, District Sahibganj.
3. Vivek Uranw, aged about 03 years, represented through his
mother Durgi Toppo, aged about 27 years, wife of Bike Orawan @
Vike Uranw and daughter of Dhaniram Uraon, resident of Chhota
Talbanna, Karanpur, P.O. Karanpur, P.S. Taljhari, District Sahibganj
... Opposite Parties
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For the Petitioners : Mrs. Jasvindar Mazumdar, Advocate
Mr. Rohan Mazumdar, Advocate
For the State : Ms. Nehala Sharmin, Spl.P.P.
Mr. Vineet Kr. Vashistha, Spl.P.P.
For the O.P. Nos.2 & 3 : None
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. Though notice has been issued to the opposite party Nos.2 and 3 yet no
one turns up on behalf of the opposite party Nos.2 and 3 in spite of repeated
calls.
3. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 528 of the Bhartiya Nagrik Suraksha
Sanhita, 2023 with a prayer to quash the order dated 27.07.2024 passed by the
learned Additional Family Court, Rajmahal whereby and where under the
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learned Additional Family Court, Rajmahal has rejected the petition dated
18.04.2024 filed by the petitioner in Original Maintenance Case No.57 of 2022
for conducting the D.N.A. examination of the opposite party No.3, who is the
son of the petitioner namely Vivek Uranw and the said petition was dismissed.
4. The brief fact of the case is that the mother of Vivek Uranw, claiming to
be the wife of the petitioner and that Vivek Uranw is the son of the petitioner,
filed a petition for maintenance under Section 125 of the Code of Criminal
Procedure; with the prayer for awarding of maintenance. The petitioner who
was the opposite party in Original Maintenance Case No.57 of 2022, took the
plea that the opposite party No.2 herein, is not his wife and the opposite party
No.3 herein, is not his son nor any marriage ever took place between the
petitioner and the opposite party No.2 of this Cr.M.P. It was also contended by
the petitioner herein, that it is impossible for the opposite party No.2 herein, to
conceal her pregnancy from the petitioner. The learned Additional Family
Court considered that the petitioner herein has taken a plea that he did not has
any access to the opposite party No.2 herein, for opposite party No.3 to have
been conceived by the opposite party No.2. The learned Additional Family
Court considered the judgment of the Hon'ble Supreme Court of India in the
case of Goutam Kundu vs. State of West Bengal & Another reported in (1993)
3 SCC 418 paragraph-26 of which reads as under:-
"26. From the above discussion it emerges--
(1) that courts in India cannot order blood test as a matter of
course;
(2) wherever applications are made for such prayers in order
to have roving inquiry, the prayer for blood test cannot be
entertained.
(3) There must be a strong prima facie case in that the
husband must establish non-access in order to dispel the
presumption arising under Section 112 of the Evidence Act.
(4) The court must carefully examine as to what would be the
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consequence of ordering the blood test; whether it will have
the effect of branding a child as a bastard and the mother as
an unchaste woman.
(5) No one can be compelled to give sample of blood for
analysis.
and considered that the petitioner ought to have established that he had
no access to the opposite party No.2 for ordering a test for D.N.A. Profile.
5. The learned Additional Family Court also considered that Section 112 of
the Indian Evidence Act is to the effect that if any person born during
continuance of a valid marriage or within 280 days after dissolution of the
marriage, if the mother remains unmarried, shall be conclusive proof that he is
the legitimate son of the man, to whom his mother marries, unless it can be
shown that the parties to the marriage, had no access to each other. The learned
Additional Family Court also considered the judgment of the Hon'ble Supreme
Court of India in the case of Dwarika Prasad Satpathy vs. Bidyut Prava Dixit
& Another reported in (1999) 7 SCC 675 paragraphs-12 and 13 of which read as
under:-
"12. Similarly, in Santosh v. Naresh Pal [(1998) 8 SCC 447]
dealing with the contention that the wife had not proved that she
was a legally married wife because her first husband was living and
there was no dissolution of her marriage, this Court held thus: (SCC
p. 448, para 2)
"In a proceeding for maintenance under Section 125 CrPC
the learned Magistrate was expected to pass appropriate
orders after being prima facie satisfied about the marital
status of parties. It is obvious that the said decision will be a
tentative decision subject to final order in any civil
proceedings, if the parties are so advised to adopt."
13. Hence, in our view from the evidence which is led if the
Magistrate is prima facie satisfied with regard to the performance of
marriage in proceedings under Section 125 CrPC which are of a
summary nature, strict proof of performance of essential rites is not
required. Either of the parties aggrieved by the order of maintenance
under Section 125 CrPC can approach the civil court for declaration
of status as the order passed under Section 125 does not finally
determine the rights and obligations of the parties.
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and considered that the petitioner was married to the opposite party
No.2 in the year 2018 and the child was born in the year 2021 as from the
documents filed by the opposite party No.2 it appears that the petitioner has
knowledge that the opposite party No.2 is his wife and also considered that the
petitioner despite having the knowledge of the birth certificate of the opposite
party No.3, has not challenged the correctness of the same and considered that
as the petitioner admits that he was available from 24.10.2020, the opposite
party No.3 having been born on 23.07.2021 nearly nine months, came to the
conclusion that it cannot be said that the petitioner was not having any
opportunity of access to the opposite party No.2 where the opposite party No.3
could have been conceived and went on to reject the petition for testing D.N.A.
Profile.
6. Learned counsel for the petitioner submits that no conclusive legal
admissible evidence has been brought on record by the opposite party No.2 to
the effect that she is the legally married wife of the petitioner. Hence, it is
submitted that the prayer, as prayed for in the instant Cr.M.P., be allowed.
7. Learned Spl.P.P. appearing for the State on the other hand vehemently
oppose the prayer of the petitioner made in the instant Cr.M.P. and relies upon
the judgment of the Hon'ble Supreme Court of India in the case of Ivan
Rathinam vs. Milan Joseph reported in 2025 SCC OnLine SC 175 and submits
that non access is impossibility and not inability and in this case the learned
trial court has rightly held that the petitioner had access, hence, it is submitted
that there is no illegality in the order passed by the learned Additional Family
(2025:JHHC:17086)
Court. It is lastly submitted that this Cr.M.P., being without any merit, be
dismissed.
8. Having heard the rival submissions made at the Bar and after carefully
going through the materials available in the record, it is pertinent to mention
here that as has rightly been held by the Hon'ble Supreme Court of India in the
case of Goutam Kundu vs. State of West Bengal (supra) that for a court to pass
the order of D.N.A. Profiling Test, there must be strong prima facie case and the
husband must establish non-access, in order to dispel the presumption arising
under Section 112 of the Indian Evidence Act. Such strict condition has been
imposed because of the consequential effect it will have on the child being
branded as a 'Bastard' and a mother as a 'Unchaste Woman.'
9. The Hon'ble Supreme Court of India in the case of Kamala & Others vs.
M. R. Mohan Kumar reported in AIR 2018 SC 5128 held that where the wife
claim maintenance from a person claiming to be husband then unlike
matrimonial proceedings where strict proof of marriage is essential in the
proceedings under Section 125 of Cr.P.C., such strict standard of proof is not
necessary as it is summary in nature meant to prevent vagrancy.
10. Now, coming to the facts of the case, the plea of the petitioner that he
was not having the access to the opposite party No.2 from 30.01.2020 to
24.10.2020. But the undisputed fact remains that the opposite party No.3 was
born on 23.07.2021. So, the opposite party No.3 having been born in nearly nine
months, this Court do not find any illegality in the conclusion arrived at by the
learned Additional Family Court, Rajmahal, that the petitioner has failed to
establish non-access which is a sine qua non for ordering a D.N.A. Profile Test.
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11. Under such circumstances, this Court do not find any illegality in the
order dated 27.07.2024 passed by the learned Additional Family Court,
Rajmahal.
12. Accordingly, this Cr.M.P., being without any merit, is dismissed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 26th of June, 2025
AFR/ Animesh
